EU’s top court deals blow to music industry’s fight against file-sharing

The music industry got some bad news from the European Court of Justice today …

While subpoenas and ex parte discovery have worked well for the RIAA in its legal fight against suspected file-sharers, the music industry in Europe looks to be facing a tougher battle. Today, an advocate general for the European Court of Justice, the highest court in the EU, released an opinion saying that ISPs are not required to disclose information that could identify subscribers in civil copyright infringement cases.

Under Court of Justice procedures, the Court will review the advocate general's opinion. It typically follows the recommendations of the advocate general, but there is a possibility that it may decide to rule differently.

The case involved Promusicae, a Spanish music industry association, and Spanish ISP Telefonica. Promusicae, similar to the RIAA in the US, had discovered Telefonica users sharing music on KaZaA. It then went to a Spanish court, seeking to force Telefonica to hand over the names and address of those who were allegedly using the IP addresses fingered on KaZaA. Telefonica refused to comply, saying that the law only required the ISP to turn over the information in criminal cases, not civil ones.

The case could have far-ranging implications for the music industry's legal fight against file-sharers in the European Union, as it would make it much more difficult for the labels to obtain identifying information for the users its investigators discover on file-sharing networks. This would then force the music industry to rely on criminal copyright investigations to finger those on P2P networks, but it must rely on its ability to find law enforcement officials with the resources to devote to tracking down P2P users.

On the other side of the Atlantic, the music industry has had a much easier time of it with civil procedures, as the RIAA has only recently suffered a couple of setbacks in its efforts to get ISPs to divulge subscriber information.

In a statement given to Ars Technica, the International Federation of the Phonographic Industry noted that the advocate general's opinion was advisory and not binding. "This Opinion needs to be studied further, but it is clear it would not prevent EU member states permitting the disclosure of data on copyright infringers in civil cases," said the IFPI's spokesperson. "[The] IFPI believes it is important that, in order to effectively tackle online infringement, copyright holders should have the possibility to access such data in civil cases rather than being required to pursue criminal action."

Copyright holders in Europe may get help from a proposed revision to IPRED, the EU's IP law. IPRED2 would, for the first time, make many forms of copyright infringement criminal rather than civil offenses and may make ISPs liable for copyrighted materials passing through their networks illegally. The law would only cover "commercial" infringement, however, leaving individual file-sharers only at risk for civil cases.

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman